Citation Nr: 1300773 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-11 254A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for plantar fasciitis, left foot. 2. Entitlement to an initial compensable evaluation for service-connected lumbar disability, characterized as lumbar strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from January 2004 to January 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. The Board notes that the Veteran was advised in May 2009 that his appeal to the Board was not timely. By a decision issued in January 2010, the RO accepted the appeal as timely. No issue regarding timeliness of the appeal is before the Board. The claim for an increased initial evaluation in excess of 10 percent for service-connected lumbar disability, characterized as lumbar strain, from November 18, 2008, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran was treated for plantar fasciitis of the left foot in service in October 2007, but no objective manifestation of plantar fasciitis or other pathology of the left foot was present on VA examination in February 2008. 2. Although the Veteran manifested no limitation of range of motion of the lumbar spine, and had no pain on lumbar motion, there was objective evidence of tenderness of the lumbar spine musculature and at the spinous processes at the time of VA examination in 2008. 3. Resolving the evidence as to pain in the Veteran's favor, the criteria for a compensable, 10 percent evaluation are met, but the Veteran has no limitation of motion or other symptomatology which meets a criterion for an evaluation in excess of 10 percent during the period addressed in this decision. CONCLUSIONS OF LAW 1. The criteria for service connection for plantar fasciitis, left foot, have not been met. 38 U.S.C.A. §§ 1110, 1112, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 2. The criteria for an initial, compensable, 10 percent evaluation, but no higher, for a lumbar spine disability, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for a left foot disorder and a compensable initial evaluation for his lumbar disability. Before addressing the claims on the merits, the Board will address whether VA's duties to notify and assist the Veteran in his claims for VA benefits have been met. Duties to claimant As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims for service connection and of his and VA's respective duties for obtaining evidence. The letter informed him of the criteria for determining the degree of disability and the effective date of the award, if service connection were awarded for disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran is challenging an initial evaluation assigned following the initial grant of service connection for lumbar disability. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before the claim for service connection was granted was legally sufficient, VA's duty to notify in this case, as to the claim for an increased initial evaluation for lumbar disability, has been satisfied. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. To the extent that the content or notice failed to identify any law or regulation applicable to this claim, the Veteran has not identified any prejudice to him due to such defect, nor does the record raise such evidence. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009). No further action to provide notice is required. VA also has a duty to assist a Veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records have been obtained. VA examination was conducted with respect to each claim addressed in this appeal. 38 C.F.R. § 3.159(c)(4). At the time of the February 2008 VA examination, the Veteran indicated that he had not obtained post-service treatment from any provider for a left foot disorder or a lumbar spine disorder. Thus, no attempt to obtain VA or private clinical records was required. The Veteran has not indicated, in any communication following the February 2008 VA examination, that he currently receives VA or private treatment for a left foot disorder, and has not indicated that he has required treatment of any type for a left foot disorder since his service discharge. The Veteran did not indicate, in communications prior to April 27, 2009,also indicated, that a long wait for treatment made his service-connected indicated that he was initially offered a job, but then the offer of employment was rescinded after the Veteran's physical examination for employment. As this information was The Veteran stated that "injuries" he incurred during military service were the reason he was not hired, but has not submitted or authorized release of the employment physical examination. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). 1. Claim for Service Connection for Plantar Fasciitis Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Moreover, under 38 C.F.R. § 3.303(b), the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Service connection will also be presumed for certain chronic diseases, such as arthritis, if manifest to a compensable degree within one year after discharge from service. 38 C.F.R. §§ 3.307, 3.309. A disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions that a specific medical diagnosis is present do not generally constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Entitlement to service-connected benefits is limited by statute to cases where there is a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("in the absence of proof of a present disability, there can be no valid claim."); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Pain does not in and of itself constitute a disability for which service connection may be granted. Id. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Fact and analysis Service treatment records reflect that the Veteran sought treatment for bilateral foot pain of three days duration in early March 2004. The provider assigned a diagnosis of tinea pedis (athlete's foot) and stated that the Veteran had diminished arches. The provider issued a "chit" for insoles. The Veteran returned a few days later, in early March 2004, reporting that his feet were painful. The provider assigned a diagnosis of pes planus and noted that the Veteran "may cont[inue] insoles." In early October 2007, the Veteran reported pain in the midsole of each foot, with radiation of the pain back to the Achilles tendon. There was tenderness to palpation (+TTP) at the midsoles and distal calcaneus. The provider assigned a diagnosis of plantar fasciitis and prescribed a stretching program. A few days later, in October 2007, the Veteran returned, reporting that the prescribed stretching did not help the foot pain. Tenderness to palpation of the volar surface of the heel and fascia was present. The Veteran was advised to adhere strictly to the prescribed stretching and to return in 5 days if the foot pain did not improve. No service separation examination is of record. The examiner who conducted VA examination in February 2008 noted that the Veteran reported that plantar fasciitis was first diagnosed in 2004. There was no history of trauma, the Veteran reported. The Veteran reported constant left foot pain, worse with physical activity, relieved with rest. He did not use orthotics, special shoes, or any other device, for his feet or the left foot, and was not receiving treatment for a left foot disorder. The examiner discussed the contemporaneous radiologic examination of the feet, which disclosed no abnormality. The examiner stated that physical examination disclosed no deformity, no tenderness, no tendonitis, no calcaneal tendon misalignment, no pain with dorsiflexion of the toes, no pain with standing or walking, and no use of corrective shoes. The examiner stated that there was no pathology of the left foot on examination. On his November 2008 notice of disagreement with the denial of service connection for plantar fasciitis, the Veteran stated a lay belief that he did have plantar fasciitis in the left foot. However, the Veteran did not indicate that he had sought or received any clinical treatment of the left foot since service. He did not indicate that any additional records of treatment were available. In his 2009 substantive appeal, the Veteran again reiterated that he had a disorder of the left foot, and he indicated his belief that his service-connected back pain caused the left foot disorder. However, the Veteran did not indicate that he had received treatment for the left foot disorder since the VA examination in 2008 or indicate that the left foot disorder had increased in severity since the 2008 VA examination. The Board finds no reason to doubt the credibility of the Veteran's statements that he experiences pain in the left foot. The Board further acknowledges that the Veteran is competent to describe symptoms she experiences. Although he is competent to describe symptoms, there is no indication that he is competent to determine whether left foot pain is a manifestation of a specific disorder of the left foot or pathology of the left foot. There is no post-service medical diagnosis of a left foot disorder. Rather, the examiner states that radiologic examination discloses no pathology. The examiner concluded that no foot disorder was presented by the findings on physical examination. As the examination was provided in February 2008, less than one month after the Veteran's January 2008 service separation, and no left foot disorder was present at that time, the Veteran's lay statements do not serve as evidence of post-service continuity of a diagnosis of a left foot disorder. As noted above, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. While the Veteran's report that he has left foot pain is credible, his lay evidence is not competent to establish that the left foot pain is a manifestation of a left foot disorder, since no left foot disorder is readily observable based on the appearance of the foot. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). Therefore, the Veteran's reports of symptoms do not establish that he has a current diagnosis of a left foot. Where the medical evidence establishes that a Veteran does not currently have a disorder for which service connection is sought, service connection for that disorder is not authorized under the statues governing Veterans' benefits. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Thus, in the absence of a medical diagnosis of a left foot disorder at some time during the pendency of the appeal, service connection for a left foot disorder cannot be granted. The Board acknowledges that the Veteran has alleged that he has a left foot disorder as a result of his service-connected lumbar disability. However, the Veteran's lay allegation as to the possible etiology of left foot pain does not authorize a grant service connection for left foot pain in the absence of pathology or medical diagnosis of a left foot disorder. Finally, in reaching these decisions, the Board considered the doctrine of reasonable doubt; however, as there is no competent medical evidence that a left foot disorder is present, the preponderance of the evidence is against the Veteran's claim, and there is no reasonable doubt which may be resolved in the Veteran's favor. Service connection for a left foot disorder must be denied. 2. Law and Regulations, Claim for Increased Initial Evaluation, Lumbar Disability Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Evidence to be considered in the appeal of an initial assignment of a rating is not limited to that reflecting the current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). Where an initial disability evaluation has been disagreed with, a Veteran may be awarded separate evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes (DCs) 5235 to 5243, unless DC 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Higher evaluations are warranted with greater limitation of thoracolumbar spine motion. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. A rating for degenerative arthritis established by radiologic findings should be based on the limitation of motion of the affected joints, unless the limitation is noncompensable. 38 C.F.R. § 4.71a, DC 5003. If the limitation is noncompensable, a rating of 10 percent is for application for each such major joint affected by limitation of motion, to be combined, not added, under DC 5003. In addition to the above criteria, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Facts and analysis In this case, the evidence establishes that the Veteran was treated for lumbar pain in service on numerous occasions. The examiner who conducted February 2008 VA examination noted the Veteran's history of treatment in service, including physical therapy, epidural corticosteroid treatment, and use of a TENS (transcutaneous electrical nerve stimulation) unit. The Veteran reported constant "aching" pain with occasional radiation to the right lower extremity. The Veteran reported that pain increased with physical activity. There was objective evidence of tenderness of the lumbar spine musculature and at the spinous processes. The Veteran did not manifest neurologic abnormality. His gait and posture were normal. There was no radiation of pain on motion. Straight leg raising was normal. The Veteran's lumbar flexion was to 90 degrees and extension was to 30 degrees. The examiner noted that pain did not occur during the range of motion, in any plane, and did not increase with repetitions of ranges of motion. The examiner concluded that there was no additional limitation of motion after repeated motion. In a November 2008 disagreement with the assignment of an initial noncompensable evaluation for each disability for which service connection was granted, the Veteran indicated that he deserved "more than" the zero percent ratings assigned, and noted that he was denied post-service employment "because of my injuries that I suffered in the military." However, the Veteran did not raise any specific contention with regard to lumbar disability, either as to severity or specific effect on employability or activities required for employment. The Board finds that this communication does not provide additional information relevant to evaluation of the service-connected lumbar disability. The Veteran did not indicate that he had received post-service treatment of his lumbar disability at that time, so there is no additional medical evidence. In contrast, in his April 2009 substantive appeal and an August 2009 communication, the Veteran referenced the severity of service-connected lumbar disability. Those 2009 communications, as noted further in the Remand below, raise a question as to the severity of lumbar disability since the November 18, 2008 communication. Therefore, the portion of the appeal since November 18, 2008, is addressed in the Remand, below. The Veteran's symptoms of the service-connected back disability at the time of the February 2008 VA examination, apparently unchanged at the time of a November 18, 2008, communication from the Veteran, consist of pain on palpation and subjective complaints of aching pain, increased with activity, but without objective evidence of increased pain on range of motion. The Veteran had full range of lumbar flexion, as defined by VA regulation, as well as full extension. The Veteran did not report pain occurring at any specific point in lumbar motion in any plane, and the Veteran did not report or manifest pain or additional limitation of motion with repetitions of motion in any plane. Because the Veteran had objective evidence of pain, as well as subjective complaints of pain, he is entitled to a compensable, 10 percent evaluation, resolving doubt in the Veteran's favor to find that the Veteran's pain approximates the criteria for a 10 percent evaluation for lumbar disability. However, the Veteran does not meet or approximate any criterion for a 20 percent evaluation. The Veteran's flexion was not limited to 60 degrees at the time of VA examination, nor did the Veteran allege increased limitation during the period at issue. The Veteran's combined motion of the thoracolumbar spine (flexion, extension, right bending, left bending, and right and left lateral rotation) was not limited. The Veteran did not report incapacitating episodes of pain. No separate neurologic abnormality was present. Thus, the Veteran did not meet any schedular criterion for an initial evaluation in excess of 10 percent for lumbar disability, evaluated through November 18, 2008. Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The analytical steps necessary to determine whether referral for such consideration is warranted have been clarified. See Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule. When the disability picture is contemplated, the assigned schedular rating is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). The evidence does not reflect, nor does the Veteran allege, that there were symptoms of back disability through November 18, 2008, that are not addressed by the schedular criteria, as considered in light of 38 C.F.R. § 4.45. As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is, therefore, adequate. In this case, the rating criteria and the criteria under 38 C.F.R. § 4.45 reasonably describes the Veteran's back pain and full actual range of motion. The Board finds that the criteria for referral for the assignment of an extraschedular disability rating are not met at the first step of the analysis. Thun, supra. The Board also notes that the records does not demonstrate any fact which could be considered an "exceptional" disability picture, so as to warrant referral for the assignment of an extraschedular disability rating under the second prong of the Thun analysis. 38 C.F.R. § 3.321(b)(1). The examiner stated that the Veteran's back disability, together with his other disabilities, would affect his ability to perform usual occupation and daily living activities minimally. Although the examiner did not make a specific finding related to the Veteran's back disability alone, the examiner's conclusion that there would be minimal occupational impairment does not warrant a finding that the schedular criteria are not adequate. Thus, a determination that the Board incorrectly evaluated the facts as to the first prong of the Thun analysis would not serve to support referral for assignment of an extraschedular evaluation. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER The appeal for service connection for plantar fasciitis, left foot, is denied. The initial evaluation for lumbar disability, characterized as lumbar strain, is increased from noncompensable to 10 percent, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. REMAND In regard to the issue of entitlement to an evaluation in excess of 10 percent for service-connected lumbar disability, characterized as lumbar strain, from November 18, 2008, the Veteran's April 2009 substantive appeal, interpreting that communication in the light most favorable to the Veteran, indicates that the Veteran's lumbar disability may have increased in severity. In contrast, as noted above, the Veteran's November 2008 notice of disagreement did not indicate that an increase in severity of lumbar disability had occurred. The Veteran's contention that lumbar disability has increased in severity since the November 18, 2008 NOD requires additional development of the medical evidence. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any VA facilities at which he has been treated for lumbar disability from November 18, 2008 to the present. Obtain any identified VA clinical records. 2. Afford the Veteran an opportunity to identify any non-VA clinical records relevant to the severity of lumbar disability. 3. Afford the Veteran an opportunity to identify any alternative records, such as education records, employment clinical records, statements of other lay individuals, or other records which might substantiate his claim. In particular, the Veteran should be advised that an examination for employment conducted by "Grumman," referenced in the Veteran's April 2009 substantive appeal, could be relevant to his claim. Obtain any identified records, with the Veteran's consent, as appropriate, or advise the Veteran that it is his responsibility to submit them. 4. The Veteran should be asked whether he has applied for Social Security Administration (SSA) benefits, disability insurance benefits, or any other type of disability or income supplementation benefits. Obtain any identified records, with the Veteran's consent, as appropriate, or advise the Veteran that it is his responsibility to submit them. 5. After the development directed in the paragraphs above has been completed, to the extent possible, the Veteran should be afforded VA examination of the lumbar spine. The claims file, including service treatment records (or a copy thereof) must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should discuss the findings of MRI examinations conducted during the Veteran's service, including in January 2007, as well as discussing any such examinations conducted after the Veteran's service. All indicated tests and studies must be conducted as deemed necessary by the examiner to properly evaluate the current severity of the Veteran's lumbar disability. The examiner must record pertinent medical complaints, symptoms, and clinical findings, including range of motion, and comment on the functional limitations, if any, caused by the service-connected lumbar disability. The examiner must determine the range of motion of the lumbar spine, in degrees, using a goniometer. If pain is present on any motion, the Veteran must be instructed to indicate to the examiner at what degree the pain begins and the examiner must report this finding. The examiner must address whether there is any weakened movement, incoordination, excess fatigability, or pain on movement after repetitions of the range of motion tests. The functional impairment due to weakened movement, incoordination, excess fatigability, or pain on movement must, if feasible, be assessed in terms of the additional degrees of limitation of motion lost. With respect to subjective complaints of pain, the examiner must comment on whether pain is visibly manifested on motion of the back, whether the Veteran's gait is affected by his lumbar disability, and the presence or absence of any other objective manifestations that would demonstrate disuse or functional impairment due to pain attributable to the service-connected disability. Additionally, the examiner should address the following question: Has the severity of the Veteran's lumbar disability increased since November 18, 2008? If so, identify the date(s) of onset of increase(s) in severity of lumbar disability and/or dates of decrease(s) in lumbar disability? The examiner must determine whether intervertebral disc disease is present. If so, the examiner should identify this abnormality and comment on its symptoms and severity. The examiner should state whether there is evidence of any objective neurological abnormality (other than intervertebral disc disease, if that disorder is present) associated with the service-connected lumbar disability. If neurologic disease due to lumbar disability is present, the examiner should describe the effect of such disorder on the Veteran's occupational functioning and daily activities. The report of examination must include a complete rationale for all opinions expressed. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 6. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. 7. After the requested examination has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. An examination report must be returned to the examiner if it is deficient in any manner and the RO must implement corrective procedures at once. 8. Thereafter, the RO must ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim. If any benefit on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs